Request By:
Christopher Shaffer, # 213252
Lt. Edgars
William P. O'Brien
Suzanne D. Cordery
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Department of Corrections violated the Open Records Act in the disposition of Christopher R. Shaffer's request for documentation relating to "the alleged 'sexual misconduct' conducted against me by Correctional Officer Furman." For the reasons that follow, we find that the Department's disposition of his request was consistent with the Open Records Act.
In his letter of appeal, Mr. Shaffer advised that he had received no response to his request.
After receipt of notification of the appeal, Suzanne D. Cordery, Assistant Jefferson County Attorney, provided this office with a response on behalf of the Department to the issues raised in the appeal. In her response, Ms. Cordery advised that the Director of the Louisville Metro Department of Corrections received Mr. Shaffer's request on November 15, 2007, and responded to the request on November 20, 2007. A copy of the response by Laura McKune, Deputy Director, Inmate Services, to Mr. Shaffer was provided. In her response, she advised:
Because there was no official investigation opened regarding your complaint, there is no investigative file or official documentation to provide. However, I will acknowledge the fact that you did file a complaint against Officer Furman, and on March 26, 2007, Lt. Eggers of our Internal Affairs Department met with you to discuss your concerns. At that time, you expressed concern that Officer Furman did not interact appropriately with inmates assigned to the Protective Custody Dorm and that during a pat search upon your return from the hospital, Officer Furman squeezed your testicle causing pain. You further advised that you were not experiencing any additional problems, but was concerned as to what Officer might do next.
Officer Furman denied any wrong doing and attributed your discomfort to a thorough search. Officer Furman was advised by his supervisor to review all Policies as it relates to professional interaction with inmates and search procedures. Both parties were advised that the situation would continue to be monitored. There was no additional action warranted at the time based upon your complaint.
The Attorney General has long recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. See, for example, OAG 86-38, OAG 91-101, 93-ORD-51, 96-ORD-164. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Ms. McKune advised that no official investigation was opened regarding Mr. Shaffer's complaint and therefore no responsive records exist. The open records question presented in this appeal is factual, and not legal, in nature.
Nothing in the record before us gives us reason to doubt the Department's statement that no official investigation was opened into Mr. Shaffer's complaint. Accordingly, we hold that the Department's response to Mr. Shaffer's open records request was proper and consistent with the requirements of the Act insofar as it cannot make available for inspection, or provide copies of, records that do not exist.
In a reply to the Department's response to this office, Mr. Shaffer stated, in part, that he had requested a copy of the complaint/letter he had personally filed against Officer Furman and the Department had failed to provide him with a copy. If it has not already done so, the Department should provide Mr. Shaffer with a copy of his complaint/letter.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.